Escobedo-Gonzalez v. Kerry et al

Filing 48

ORDER denying 28 Motion for District Judge to Reconsider Order.; denying 32 Motion for District Judge to Reconsider Order. Signed by Judge James C. Mahan on 10/6/2017. (Copies have been distributed pursuant to the NEF - JM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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MARIO ESCOBEDO-GONZALEZ,

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Plaintiff(s),

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Case No. 2:15-CV-1687 JCM (PAL)
ORDER

v.
JOHN KERRY, et al.,

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Defendant(s).

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Presently before the court is plaintiff’s motion to reconsider and request for oral argument.

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(ECF No. 28). The government responded (ECF No. 30) to which plaintiff replied (ECF No. 33).

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Also before the court is the government’s motion to reconsider (ECF No. 32). The plaintiff

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responded (ECF No. 34) to which the government replied (ECF No. 39).

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I.

Facts

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On January 23, 1987, the United States Department of Justice, through the Immigration

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and Nationalization Service (“INS”), began removal proceedings against Mario Escobedo-

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Gonzalez (“plaintiff”). (ECF No. 13). The INS argued that plaintiff was born in Mexico and not

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in Cameron County, Texas, as reported in his birth certificate. (ECF No. 13). The INS claims it

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received evidence that the midwife who signed plaintiff’s birth certificate was not actually present

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during his birth. (ECF No. 18-3). However, the immigration judge ruled in plaintiff’s favor,

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finding that INS failed to satisfy its burden to prove, by clear and convincing evidence, that he was

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a deportable foreign national.1 (ECF No. 18-3).

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James C. Mahan
U.S. District Judge

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The immigration judge stated in dicta that plaintiff had proven that he was a citizen.
(ECF No. 18-3 at 14).

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After this ruling, plaintiff applied for a passport with the Department of State (“DOS”).

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(ECF No. 13). DOS approved plaintiff’s application and issued him a passport on July 21, 1995.

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(ECF No. 18-4). Plaintiff applied to renew his passport on March 28, 2005, and DOS issued his

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renewal on April 13, 2005. (ECF No. 18-4).

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On April 7, 2015, plaintiff applied for his second passport renewal. (ECF No. 18-4). On

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May 7, 2015, DOS requested plaintiff’s certified birth certificate to prove his citizenship because,

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as DOS claims, evidence had surfaced that the midwife who signed his birth certificate was not

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present at his birth. (ECF No. 18). Plaintiff, through counsel, responded with a letter and attached

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the immigration judge’s opinion which, plaintiff submitted, had resolved the issues with which

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DOS was concerned. (ECF No. 18-5). DOS responded with an additional letter again requesting

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plaintiff’s birth certificate, or other documentation to prove that plaintiff was born in the United

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States. (ECF No. 18-5). Plaintiff did not respond. (ECF No. 18-5). Two months later, DOS

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denied plaintiff’s renewal request because plaintiff did not provide his birth certificate, and

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because DOS did not believe that plaintiff had proven his citizenship by a preponderance of the

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evidence. (ECF No. 18-5).

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Plaintiff’s amended complaint alleges that DOS wrongfully denied his passport renewal

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and asks this court to declare him a United States citizen pursuant to this court’s authority to do so

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under 8 U.S.C. § 1503 and 28 U.S.C § 2201. (ECF No. 13).

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On April 20, 2017, the court denied plaintiff’s motion for summary judgment. (ECF No.

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26). Plaintiff subsequently filed a motion for reconsideration and request for oral argument. (ECF

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No. 28). Government filed a cross-motion for reconsideration. (ECF No. 32).

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II.

Legal Standard

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A motion for reconsideration “should not be granted, absent highly unusual

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circumstances.” Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000).

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“Reconsideration is appropriate if the district court (1) is presented with newly discovered

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evidence, (2) committed clear error or the initial decision was manifestly unjust, or (3) if there is

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an intervening change in controlling law.” School Dist. No. 1J v. ACandS, Inc., 5 F.3d 1255, 1263

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(9th Cir. 1993); LR 59-1. A motion for reconsideration “may not be used to raise arguments . . .

James C. Mahan
U.S. District Judge

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for the first time when they could reasonably have been raised earlier in litigation.” Kona Enters.,

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Inc., 229 F.3d at 890.

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III.

Discussion

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A. Plaintiff’s motion for reconsideration

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In plaintiff’s motion for reconsideration, he raises the following five arguments: (1) “8

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U.S.C. § 1252(b)(5)(C) does not apply to the plaintiff”; (2) “the Chau v. I.N.S. case does not apply

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to the facts of this case”; (3) 8 U.S.C. § 1452(a) does not apply to plaintiff; (4) “issue preclusion

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is fully applicable”; and (5) the court should reverse its order (ECF No. 26) based on newly

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discovered evidence. (ECF Nos. 28, 33 at 3–7).

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1. 8 U.S.C. § 1252(b)(5)(C)

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First, plaintiff asserts that “this court’s reliance on 8 U.S.C. 1252 is completely misplaced

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because § 1252 deals with orders of removal and plaintiff never received an order of removal.”

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(ECF No. 28 at 3). However, the court merely discussed § 1252 as one way, not the only way,

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that a “party can raise a defense of citizenship.” (ECF No. 26 at 7). This is was not “clear error”

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that would justify a motion for reconsideration. See Kona Enters., Inc., 229 F.3d at 890.

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Moreover, even if plaintiff were correct, this point alone would not earn him summary judgment.

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2. Chau v. I.N.S.

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Second, plaintiff asserts that the court erroneously quoted or cited Chau v. I.N.S., 247 F.3d

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1026 (9th Cir. 2001) for part of its holding. (ECF No. 28 at 4). But the court did not quote Chau,

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it quoted Rios-Valenzuela v. Dep’t of Homeland Sec., 506 F.3d 393, 396–97 (5th Cir. 2007), and

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simply noted that Rios-Valenzuela cites Chau after the sentence that this court quoted. (ECF No.

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26 at 7) (“Rios-Valenzuela . . . (citing Chau, 247, F.3d at 1027–28)”). Rios-Valenzuela simply

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cites Chau in a footnote at the end of the quote that this court included in its order.2 Not only was

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this not “clear error” warranting reconsideration, it was not error at all. See Kona Enters., Inc.,

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229 F.3d at 890.

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James C. Mahan
U.S. District Judge

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In its entirety, the footnote reads: See Ng Fung Ho v. White, 259 U.S. 276, 284, 42 S. Ct.
492, 66 L. Ed. 938 (1922); Chau v. INS, 247 F.3d 1026, 1027-28 (9th Cir. 2001).
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The only nuance Chau adds to the issue of collateral estoppel or issue preclusion here is its

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holding that an immigration court is not to decide citizenship when genuine issues of material fact

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about citizenship exist. Chau v. I.N.S., 247 F.3d 1026, 1029 (9th Cir. 2001) (“If the petitioner

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claims to be a United States citizen and the record presents a genuine issue of material fact as to

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the petitioner's nationality, the reviewing court must transfer the proceeding to a district court for

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a de novo determination.”); see also 8 U.S.C. § 1252(b)(5).

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As this court has noted before and notes here again, genuine issues of material fact exist

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regarding citizenship, and therefore, it was error for the immigration court to decide the matter and

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its decision is non-binding. Whether or not the immigration court itself realized that there were

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genuine issues of material fact to resolve is immaterial—this court holds that there were.3

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3. 8 U.S.C. § 1452(a)

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Third, plaintiff asserts that 8 U.S.C. § 1452(a) does not apply to him because he is not

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claiming derivative citizenship, rather, he claims he is a citizen by natural birth in Texas. (ECF

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No. 28 at 6). The court previously held that “[i]f a party wishes to affirmatively prove his

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citizenship through the attorney general, he must do so by filing an application for citizenship

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under 8 U.S.C. § 1452(a). (ECF No. 26 at 7). Further, the court stated that “if the party’s

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application for citizenship is denied, and the party exhausted his administrative remedies, then the

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party can sue for a declaration of citizenship under 8 U.S.C. § 1503(a).” (ECF No. 26 at 7).

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On this issue, plaintiff is correct and the court erred in its prior order. The plain language

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of § 1452 indicates to whom it applies: “a person who claims to have derived United States

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citizenship . . . .” 8 U.S.C. § 1452 (emphasis added). Therefore, plaintiff is correct that 8 U.S.C.

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§ 1452(a) does not apply to him, as it applies only to those seeking to prove derivative citizenship.

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To the extent that this court’s prior order can be read to imply that a party claiming to be a natural-

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born citizen can and must rely on 8 U.S.C. § 1452(a) to seek a declaration of citizenship, this was

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error. 8 U.S.C. § 1452(a) does not apply to those claiming to be natural-born citizens.

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James C. Mahan
U.S. District Judge

Much of the immigration court’s decision relied on findings of credibility and a rejection
of the government’s evidence. Thus, the immigration court’s decision constituted a resolution of
genuine issues of material fact, not a determination that no genuine issue existed. Regardless, this
court now holds that genuine issues of material fact did exist then and still exist now.
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Nonetheless, any error was harmless as to the motion for summary judgment. Regardless

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of the applicability of 8 U.S.C. § 1452(a), plaintiff has still not conclusively demonstrated, after

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construing all reasonable inferences in the record in favor of the government, that there are no

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genuine issues of material fact and that he was born in the United States by a preponderance of the

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evidence. Although the court recognizes that 8 U.S.C. § 1452(a) is not an obstacle to his ability

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to prove his citizenship, he still must prove that he is a citizen. Genuine issues of fact remain with

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this question.

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4. Issue preclusion

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Fourth, plaintiff re-asserts his argument that issue preclusion applies and that “defendants

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may not relitigate these issues and are barred from contesting the plaintiff’s U.S. citizenship by

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the doctrine of collateral estoppel.” (ECF No. 28 at 10). To succeed with a motion for

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reconsideration, a party must demonstrate one of three things: (1) newly discovered evidence; (2)

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that the court committed clear error or the initial decision was manifestly unjust; or (3) if there is

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an intervening change in controlling law. School Dist. No. 1J, 5 F.3d at 1263; LR 59-1. These

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are the only arguments permissible on reconsideration. One must not repeat old arguments:

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“Motions for reconsideration are disfavored. A movant must not repeat arguments already

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presented unless (and only to the extent) necessary to explain controlling, intervening law or to

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argue new facts. A movant who repeats arguments will be subject to appropriate sanctions.” LR

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59-1(b) (emphasis added). And one must not conjure up new arguments other than the three

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permissible arguments permissible on reconsideration. See Kona Enters., Inc., 229 F.3d at 890.

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Plaintiff presents the same argument he raised in his motion for summary judgment—

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collateral estoppel applies. He also argues—as he has before—that he is a citizen by birthright.

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As plaintiff made these arguments before, they are inappropriate for reoncisderation.

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Plaintiff further argues that this court must defer to the attorney general’s determinations

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of citizenship, which includes an immigration court’s determination. This is an argument plaintiff

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made in passing before. (ECF No. 18-1 at 14). But to the extent that it is a new argument, it had

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no hearing for reconsideration. Kona Enters., Inc., 229 F.3d at 890.

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James C. Mahan
U.S. District Judge

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Even if this court generously construed plaintiff’s arguments as arguments that the court

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committed “clear error” or “manifest injustice,” plaintiff’s arguments still fail because this court’s

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original decision on collateral estoppel was correct. In general, a prior determination of fact or

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law in another tribunal will bind this court only if the prior court considered the issues under the

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same legal standard that applies here: “relitigation of an issue is not precluded unless the facts and

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the legal standard used to assess them are the same in both proceedings.” Amrollah v. Napolitano,

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710 F.3d 568, 571 (5th Cir. 2013) (quoting Pace v. Bogalusa City Sch. Bd., 403 F.3d 272, 290 (5th

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Cir. 2005) (en banc)). The legal standard in this case is quite different—indeed, almost the

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opposite—from that applicable to the immigration proceeding.

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8 U.S.C. § 1503 and 28 U.S.C. § 2201 govern this proceeding. This court will declare

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plaintiff a United States citizen only if he proves by a preponderance of the evidence that he is, in

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fact, a citizen of the United States. Yu Tang Gay v. Rusk, 290 F.2d 630, 631 (9th Cir. 1961).

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In plaintiff’s immigration removal proceeding, however, the burden was flipped. The

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immigration court was only to decide whether the government had proven by clear and convincing

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evidence that plaintiff was not a United States citizen—indeed, plaintiff did not need to

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affirmatively prove that he was a United States citizen by any standard, as he must here.

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Moreover, the immigration court was simply barred from deciding the citizenship of the

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respondent: while a party can raise a defense of citizenship in the context of a removal proceeding

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because a genuine issue of material fact existed (and exists now) over the question of plaintiff’s

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citizenship: “if the immigration judge accepts the citizenship defense, [the immigration judge]

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terminates the removal proceedings without deciding citizenship.” Rios-Valenzuela v. Dep’t of

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Homeland Sec., 506 F.3d 393, 396–97 (5th Cir. 2007).

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Therefore, collateral estoppel does not apply here for multiple reasons: this court is

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applying a different standard to the questions at hand than the immigration court did, and the

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immigration court’s determination of citizenship was not necessary to the resolution of the issue

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before it (indeed, it was barred from making that determination). The immigration judge did not

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need to find by a preponderance of evidence that plaintiff was born in the United States in order

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to determine that the government had failed to prove by clear and convincing evidence that he was

James C. Mahan
U.S. District Judge

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born in Mexico; the immigration judge needed only to be unconvinced by the government’s

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evidence. Here, on the other hand, plaintiff must affirmatively prove he is a United States citizen

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by a preponderance of evidence.

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Therefore, to be abundantly clear about the meaning of this order, the questions of

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plaintiff’s citizenship and place of birth are open for this court to decide upon an independent

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presentation of evidence to this court, and this court will not rely on the immigration judge’s

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answers to those questions.

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5. Newly discovered evidence

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Plaintiff—for the first time in his reply to his reconsideration motion—urges the court to

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reverse its order because “defendant relied on inaccurate information when it opposed plaintiff’s

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motion for summary judgment.” (ECF No. 33 at 3). Plaintiff alleges that the government was

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aware of an April 15, 2016 report by the Texas Office of Inspector General that concluded “the

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allegations the midwife filed an alleged fraudulent Texas Certificate of Birth is unsubstantiated”

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and thus was aware of this fact when the government wrote its opposition to summary judgment.

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(ECF No. 33 at 6); (ECF No. 33-5 at 3).

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A motion for reconsideration “may not be used to raise arguments . . . for the first time

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when they could reasonably have been raised earlier in litigation.” Kona Enters., Inc., 229 F.3d at

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890. Plaintiff’s reply is the first time he mentions these alleged facts and their implications. (ECF

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No. 33).

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unavailable to him at the time of the original motions for summary judgment or that it was not

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readily discoverable.

Further, he has not convinced the court that the purported “new” evidence was

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Plaintiff argues that the report was published on April 15, 2016, and therefore, the

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government was aware of the report before it filed its response on October 3, 2016. However,

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simply because the report was generated before the government submitted its response does not

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prove that the government was actually aware of it. Further, plaintiff claims that he did not

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personally receive a copy of this document until July 1, 2017, and the same day, sent it to the

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government. (ECF No. 33 at 3). This was long after the government responded to plaintiff’s

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motion for summary judgment. Further, that date cannot be correct because it falls a month after

James C. Mahan
U.S. District Judge

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plaintiff filed his reply in the instant matter in which he discusses this very report. (ECF No. 33).

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In other words, plaintiff discussed this report a month before he purportedly received it. (ECF No.

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33). Plaintiff must have received this evidence sometime before, but has not accurately told the

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court when. Whatever the case, plaintiff has not convinced this court that this information was

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unavailable to him or not readily discoverable when he filed his September 8, 2016 motion for

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summary judgment. (ECF No. 18).

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Even if the “July 1, 2017” was a typographical error, and plaintiff meant to write “July 1,

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2016,” (see ECF No. 4), that only furthers the conclusion that this information was available or

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readily discoverable before plaintiff filed his September 8, 2016 motion for summary judgment.

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(ECF No. 18).

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Accordingly, plaintiff has not shown that the new evidence was unavailable to him or was

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not readily discoverable at the time he filed is motion for summary judgment. Kona Enters., Inc.,

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229 F.3d at 890.

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And regardless, even if this court considered this new evidence, genuine issues of material

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fact exist regarding plaintiff’s citizenship because, among other things, there exists a Mexican birth

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certificate in the record that conflicts with plaintiff’s United States birth certificate. Although

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plaintiff has provided an explanation for this conflict—as has the government—whether this court

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will accept one explanation over the other remains a genuine issue of material fact for trial.

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6. Conclusion of plaintiff’s motion for reconsideration

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Therefore, the court will deny plaintiff’s motion for reconsideration because he failed to

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show why the court should grant his motion.

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B. The government’s counter-motion for reconsideration

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The government’s cross-motion for reconsideration urges the court to grant summary

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judgment for the defense and to dismiss plaintiff’s case in its entirety. See (ECF No. 32). The

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government asserts that it is entitled to relief because “plaintiff has established no evidence to rebut

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the presumption that he was born in Mexico.” (ECF No. 32 at 9). However, this argument is not

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actually a motion for reconsideration, but is instead a late-filed motion for summary judgment.

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(See ECF No. 17 at 2). A review of the docket shows that the government has never moved for

James C. Mahan
U.S. District Judge

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summary judgment before in this case, despite its claims to the contrary in the instant “cross-

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motion for reconsideration.” The government’s “opposition to plaintiff’s motion for summary

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judgment” was not a motion or counter-motion for summary judgment, despite the fact that it asked

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the court to grant summary judgment in the government’s favor, but was instead simply a response

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to plaintiff’s motion for summary judgment. (ECF No. 22). Here is why.

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First, the document was not titled a motion or countermotion for summary judgment, it was

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titled only “Defendants’ opposition to plaintiff’s motion for summary judgment.” Id. The request

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for summary judgment was buried within the text of the brief, where the government explains why

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it is entitled to summary judgment. But it never actually filed a motion asking for that relief.

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Second, more importantly, even if the document had styled itself an “opposition and

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countermotion for summary judgment,” the court would have rejected the countermotion

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nonetheless. In the federal district of Nevada,

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For each type of relief requested or purpose of the document, a separate document
must be filed and a separate event must be selected for that document. Examples:
(i) separate documents must be filed for a response to a motion and a
countermotion, with the appropriate event selected for each document, rather than
filing a response and a countermotion in one document; (ii) separate documents
must be filed for a motion to dismiss and a motion to sever, rather than filing a
motion to dismiss and to sever in one document.

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LR IC 2-2(b). Therefore, the government has never properly moved for summary judgment.

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As explained above, a motion for reconsideration is limited to requesting that the court

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reconsider a decision it has already made in a prior order—it is not a vehicle for entirely new

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requests for relief. As the defense has not moved for summary judgment before, this court will

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not consider this relief now, for the first time on reconsideration.4

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IV.

Conclusion

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Accordingly,

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IT IS HEREBY ORDERED, ADJUDGED, and DECREED that plaintiff’s motion for

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reconsideration (ECF No. 28) be, and the same hereby is, DENIED.

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James C. Mahan
U.S. District Judge

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Nevertheless, note that this court has repeatedly held that genuine issues of material fact
exist that must be resolved at trial.
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IT IS FURTHER ORDERD that defendants’ motion for reconsideration (ECF No. 32) be,

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and the same herby is, DENIED.

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DATED October 6, 2017.

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__________________________________________
UNITED STATES DISTRICT JUDGE

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James C. Mahan
U.S. District Judge

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